No sentence seems severe enough for the monstrous Ariel Castro, who allegedly kidnapped, imprisoned, raped, and tortured three women for more than a decade. It’s easy to see why prosecutors are weighing whether to charge him with murder and subject him to the death penalty for his alleged acts, including repeatedly impregnating one of his victims and then beating and starving her until she miscarried. Even if you oppose the death penalty, as I do, Castro deserves it if anyone does.
But if he is convicted of capital murder, it will ultimately be an injustice—not to him, but to the rest of us. That’s because it will mean that legally, ending a pregnancy is a greater crime than keeping three human beings locked in a squalid dungeon for a decade. Such a precedent will have implications beyond this terrible case.
Laws that allow for murder prosecutions in instances of fetal death often result from horrific crimes against women. Once they’re on the books, though, they can be used to prosecute women for ending or endangering their own pregnancies. In Indiana, for example, the murder statute was expanded in 1997 to include the words “viable fetus” after a woman named Melanie Knox was shot when she was 8½ months pregnant; she survived, but her baby was stillborn. Thirteen years later, a pregnant woman named Bei Bei Shuai tried to commit suicide in Indiana by drinking rat poison. Friends rushed her to the hospital and she survived, but her baby, born by Caesarean at 33 weeks, suffered a brain hemorrhage and died. As a result, she was charged with murder and is currently awaiting trial in September.
The anti-abortion movement has been canny about using violence against pregnant women to pass laws giving fetuses rights. “In as many areas as we can, we want to put on the books that the embryo is a person,” Samuel Casey, former executive director of the Christian Legal Society, told the Los Angeles Times in 2003. “That sets the stage for a jurist to acknowledge that human beings at any stage of development deserve protection—even protection that would trump a woman’s interest in terminating a pregnancy.” After the high-profile murder of the pregnant Laci Peterson, for example, George W. Bush signed the 2004 “Unborn Victims of Violence Act,” which the National Right to Life Committee had been pushing for five years. Thanks to lobbying by the anti-abortion movement, most states now recognize unborn victims in their homicide laws.
On the surface, this seems entirely unobjectionable, since everyone wants to protect pregnant women. But laws and legal precedents that give fetuses rights separate from those of the women who carry them are regularly used against pregnant women, even those with no intention of aborting. They’ve been employed to prosecute pregnant drug addicts, alcoholics, and those who refuse medical interventions recommended by doctors. The feminist organization National Advocates for Pregnant Women has identified 413 cases between 1973 and 2005 of women who were arrested, incarcerated, or institutionalized because of harm or threatened harm to their fetuses. “Data showed that state authorities have used post-Roe measures including feticide laws and anti-abortion laws recognizing separate rights for fertilized, eggs, embryos and fetuses as the basis for depriving pregnant women—whether they were seeking to end a pregnancy or go to term—of their physical liberty,” says a report it released in January.
Some conservatives are already trying to use the Castro case to argue for restricting reproductive choice. Noting the possibility of Castro’s execution, Charles C.W. Cooke writes at The National Review’s blog The Corner, “Yet abortion is legal in Ohio, as everywhere else in the United States. This means that if you kill an unborn child in Ohio with the mother’s permission, it’s okay; if you do it without her permission, it’s murder. The unborn child, therefore, is only a life if the mother says it is a life. That makes no logical sense at all. It is the logic of slavery, not of individual liberty. Who will defend it?”
To be sure, if prosecutors charge Castro with murder, it won’t be because they’re trying to gain ground in the abortion wars. It’s their job to seek the maximum possible penalty against such a man. There must be a way to do that, though, that doesn’t treat Amanda Berry, Gina DeJesus, and Michelle Knight as only secondary victims. Attacking a woman so that she miscarries should certainly be treated as a grave crime, but a crime primarily against the woman. Otherwise, it’s only a short step to treat women who cause their own miscarriages as murderers.
“While there absolutely should be additional charges to causing women to lose their pregnancies, when we do it in a way that separates fertilized eggs, embryos, or fetuses from the pregnant women, it’s inevitably and always used as a mechanism for further dehumanizing and criminalizing pregnant women themselves,” says Lynn Paltrow, the National Advocates for Pregnant Women’s executive director. Castro’s abominations must be punished without turning into a pretext to punish other women as well.